Little v. Foster

This
matter has been pending since June 24, 2016. (Docket #1). On
that date, Petitioner filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner filed
several motions to amend his petition, and it was ultimately
screened on October 20, 2016. (Docket #12). Respondent
responded to the petition on December 19, 2016. (Docket #15).
Petitioner then sought further leave to amend his petition
and several extensions of time to file his brief in support
of his petition, all of which were granted in an order dated
March 27, 2017. (Docket #21). The matter was reassigned to
this branch of the Court pursuant to that same order.
Id.

Petitioner
ultimately filed his brief in support of his petition on
March 21, 2017. (Docket #20). On June 1, 2017, Petitioner
filed a motion to stay these proceedings to permit him to
exhaust several new constitutional claims, not previously
raised in his petition or amendments thereto, in Wisconsin
state court. (Docket #27). Respondent opposes the request.
(Docket #28).

A stay
and abeyance is appropriate when “the petitioner had
good cause for his failure to exhaust all claims and. . .the
unexhausted claims have some possible merit.” Dolis
v. Chambers, 454 F.3d 721, 724 (7th Cir. 2006) (citing
Rhines v. Weber, 544 U.S. 269, 277-78 (2005));
Arrieta v. Battaglia, 461 F.3d 861, 866-67 (7th Cir.
2006). “[W]henever good cause is shown and the claims
are not plainly meritless, stay and abeyance is the preferred
course of action.” Tucker v. Kingston, 538
F.3d 732, 735 (7th Cir. 2008). Requiring a showing of good
cause before entertaining a stay is critical because staying
a federal habeas petition: (1) frustrates the Antiterrorism
and Effective Death Penalty Act of 1996's
(“AEDPA”) “objective of encouraging
finality of state court judgments by allowing a petitioner to
delay the resolution of the federal proceedings”; and
(2) “undermines AEDPA's goal of streamlining
federal habeas proceedings by decreasing a petitioner's
incentive to exhaust all his claims.” Rhines,
544 U.S. at 270. It is for this reason that the Supreme Court
has emphasized that a “stay and abeyance should be
available only in limited circumstances.” Id.

Here,
Petitioner has not shown that good cause supports his request
for a stay and abeyance. It is important to appreciate that
his failure to exhaust in this instance is multi-layered. He
claims that a stay is needed to pursue a petition pursuant to
State v. Knight, 484 N.W.2d 540 (Wis. 1992), in the
Wisconsin Court of Appeals. (Docket #27). A Knight
petition challenges the effectiveness of appellate counsel.
See Knight, 484 N.W.2d at 544. Underlying that
claim, however, are several additional claims-which also have
not before been raised in this Court-that Petitioner contends
he wanted his appellate counsel to assert during his appeal.
Petitioner reasons that his appellate counsel was ineffective
for failing to raise and exhaust these grounds. (Docket #27
at 1).

These
underlying claims which appellate counsel allegedly failed to
raise can be briefly summarized. First, Petitioner says that
his due-process rights were violated when evidence was
admitted at trial regarding unrelated sexual misconduct by a
person other than himself and against a person who was not
the victim in Petitioner's case. Id. at 1-2.
Second, Petitioner contends that during his trial, several
references were made to the fact that he was incarcerated
prior to trial, although the judge had granted a motion in
limine to exclude such references. Id. at 3.
Finally, Petitioner asserts that he was prejudiced by the
prosecution's “misrepresentations of the
evidence” at trial. Id. at 3-5. Petitioner
argues that the government lawyer lied in order to cover up
the lies of the young victim and revive her credibility.
Id.[1]

In his
principal brief, Petitioner focused exclusively on the merits
of these claims. See (Docket #27). He offered no
reasons at all that good cause supports a stay of this habeas
proceeding. Respondent pointed this out in his opposition,
contending that Petitioner did not try to justify his failure
to raise and exhaust these claims previously. (Docket #28 at
3). Additionally, in Respondent's view, Petitioner's
underlying claims rely on “nothing more than his
disagreement with trial court evidentiary rulings, his claim
that the young victim lied at trial, and his vague claims of
prosecutorial misconduct.” Id. at 4.
Respondent contends that these suggestions do not establish
that the state courts committed errors sufficiently serious
to support habeas relief under Section 2254. Id.

In his
reply, Petitioner argues for the first time that good cause
supports his requested stay. Courts generally decline to
consider arguments raised for the first time in a reply
brief, as this tactic deprives the non-movant of the ability
to challenge the arguments. Studio & Partners v.
KI, No. 06-C-0628, 2008 WL 426496, at *6 (E.D. Wis.,
Feb. 14, 2008) (“[I]t should go without saying that a
reply brief [ ] is hardly the correct vehicle for raising new
arguments[.]”) (citing TAS Distrib. Co., Inc. v.
Cummins Engine Co., Inc., 491 F.3d 625, 630-31 (7th Cir.
2007)); James v. Sheahan, 137 F.3d 1003, 1008 (7th
Cir.1998) (“Arguments raised for the first time in a
reply brief are waived.”). Courts enforce this rule
even against pro se litigants like Petitioner, who,
despite a lack of legal training, should well understand the
practical effect of trying to make a new argument that
Respondent is not permitted to address. See
Duran-Martinez v. United States, No. 07-C-536, 2007 WL
3342585, at *3 (E.D. Wis. Nov. 8, 2007); Powers v. United
States, No. 04-CV-471, 2008 WL 467400, at *1 (E.D. Wis.
Feb. 19, 2008). Thus, the Court finds that Petitioner has
waived any arguments raised in his reply relating to good
cause for a stay and abeyance. Having offered no such
arguments in his principal brief, the Court finds that
Petitioner's motion must be denied.

Yet
even if were Court to consider Petitioner's reply
arguments, it would find them to be without merit. Petitioner
states that he failed to exhaust the instant claims because
of undue influence exerted by his appellate counsel. (Docket
#29 at 3). However, he does not clearly explain what the
attorney did to influence him; indeed, from Petitioner's
description of their interactions, it appears that his
counsel offered all the arguments that Petitioner suggested
he should. Id. Petitioner does little more than
opine that his counsel should have known that these other
potential arguments existed because of his legal training.
Id. at 3-4. Moreover, Little's reply is unsworn,
and thus his accusations against his attorney are pure,
uncorroborated speculation. This is not the sort of showing
that warrants an indefinite stay of this proceeding.

Petitioner
justifies his own personal failure to recognize the existence
of these claims by pointing to his lack of familiarity with
the law. Id. at 4. Yet Petitioner's pro
se status and his lack of legal training are not viable
excuses in this instance. See Harris v. McAdory, 334
F.3d 665, 668 (7th Cir. 2003); Smith v. McKee, 598
F.3d 374, 385 (7th Cir. 2010). Next, Petitioner suggests that
his indigency has deprived him of the aid of counsel and
access to research materials. (Docket #29 at 5). His lack of
funds further forces him to handwrite his filings, as he
cannot afford copies. Id. at 6. He also complains
that he has limited access to the prison law library.
Id. at 5. These are not atypical hardships for
prisoners and do little to excuse Petitioner's failure to
exhaust. Tucker, 538 F.3d at 734-35.

Finally,
Petitioner asserts that these factors, taken in combination,
meant that he needed several months to draft even a single
document in support of his habeas petition or the
Knight petition. (Docket #29 at 6-8). He admits,
however, that as of the close of his appeal, he had seven
months to file a Knight petition and yet failed to
do so. Id. at 7. The Court is not persuaded that
even a person unfamiliar with the law and forced to handwrite
documents should take months to produce his filings. Thus,
the Court finds that Petitioner's arguments in favor of a
stay fall short, especially considering the Supreme
Court's instruction that stay-and- abeyance should be
available only in limited circumstances. Rhines, 544
U.S. at 277.[2]

The
Court appreciates that if the instant petition is dismissed,
it “‘effectively end any chance at federal habeas
review.'” Tucker, 538 F.3d at 735 (quoting
Dolis, 454 F.3d at 725). However, the petition need
not end here if Petitioner desires to proceed on his existing
claims. In light of the Court's decision to deny his
request for a stay and abeyance, Petitioner must decide
between the following two options within the next
fourteen (14) days. First, Petitioner may
proceed solely on the basis of his existing, properly
exhausted claims. However, if he elects this course of
action, the Court will consider only the merits of those
claims, which would restrict future federal habeas corpus
review of Petitioner's unexhausted claims because those
claims would then be subject to the AEDPA's limitation on
successive filings, as well as AEDPA's one-year statute
of limitations. Second, Petitioner may voluntarily dismiss
this action and proceed with his Knight petition in
the Wisconsin Court of Appeals. This choice may limit future
federal habeas corpus review of Petitioner's claims in
light of the AEDPA one-year statute of limitations, which for
Petitioner expired long ago.

Accordingly,
IT IS ORDERED that Petitioner's request for a stay and
abeyance (Docket #27) be and the same is hereby DENIED; and

IT IS
FURTHER ORDERED that Petitioner shall file, no later than
fourteen (14) days from the date of this Order, either: (i) a
notice indicating that he wishes to proceed on his existing
claims only; or (ii) a voluntary dismissal of his petition
altogether. If Petitioner fails to file such a submission in
...

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